Under symbolic speech doctrine, which activity would not be prohibited under strict scrutiny?

• A. Draftcard Burning
• B. Cross Burning to Intimidate
• C. Nude Dancing
• D. Flag Burning

Answer: (D)

The main idea is that some symbolic acts express political viewpoints and are protected by the First Amendment, so government bans on that kind of expressive conduct must pass the strict scrutiny test and, in some clear cases, cannot be upheld.

Flag burning is political expression that conveys a message about government policy, and the Supreme Court has held that banning such flag burning would violate the First Amendment. In that line of cases, the government cannot prohibit this form of expressive conduct simply because it is provocative; there’s no sufficiently compelling interest shown to override the speech, so it cannot be prohibited under strict scrutiny. That’s why this option is not prohibited under strict scrutiny.

Draftcard burning is a different situation. The Court has allowed restrictions on draft-card destruction as a regulation of conduct tied to the draft, applying a more deferential standard (intermediate scrutiny) rather than strict scrutiny. So it could be prohibited under that framework, not protected in the same way as flag burning.

Cross burning to intimidate falls outside protections because it’s used to threaten or coerce, which the Court has treated as unprotected speech in contexts of intimidation, so it would be prohibited even under strict scrutiny.

Nude dancing can be regulated for decency or obscenity concerns and is not categorically protected in the same way as core political speech; it is typically subject to regulation under less-than-strict scrutiny.

So flag burning stands out as the activity that would not be prohibited under strict scrutiny.